7
Asylum in the
industrialized world
The 1951 UN Refugee Convention was primarily drawn up in response to the mass
displacement in Europe at the end of the Second World War. Half a century later, it is
in Europe, and in the world’s other industrialized countries, that the institution of
asylum is facing some of its greatest challenges. Anxious to protect their borders from
unwanted immigration, and suspicious of the motivations of many of those seeking
asylum, governments of industrialized countries have adopted a range of new
measures to control and restrict access to their territory. For refugees fleeing persecution, these measures have in many cases severely affected their ability to gain access
to asylum procedures and safety.
This chapter examines refugee policy developments in Europe, North America,
Australia, New Zealand and Japan. The first section assesses European countries’
approaches to refugee protection, focusing on developments during the 1980s and
1990s. These include efforts to combat illegal migration and their consequences for
refugees and asylum seekers, moves to harmonize asylum policies within the
European Union, and responses to the massive displacement resulting from war in
the Balkans. It also traces the transformation since 1989 of countries in Central and
Eastern Europe from refugee-producing to refugee-receiving countries.
The second and third sections describe how in the United States, Canada and
Australia, which are all traditional countries of immigration, government-supported
resettlement programmes have offered millions of refugees a new start since the end
of the Second World War. These sections examine how, in spite of the hospitality
shown to refugees through these programmes, political interests have repeatedly
threatened to undermine governments’ obligations towards asylum seekers. In both
North America and Australia, government policies have increasingly been influenced
by the need to respond to growing numbers of asylum seekers arriving spontaneously.
One of the main challenges now faced by all industrialized states in meeting their
obligations towards refugees is that of dealing with the phenomenon of ‘mixed
flows’ of refugees and other migrants, and the related phenomenon of ‘mixedmotive migration’. Many people leave their home countries for a combination of
political, economic and other reasons.1 This mixture of motives is one factor creating
a perception of widespread abuse of asylum systems, which is often manipulated by
politicians and the media.
In addition, the illegal trafficking and smuggling of people is increasingly
becoming a complicating feature of the migration landscape. With regular arrival
routes closed, many refugees are turning to smugglers to reach safety, in spite of the
dangers and the financial costs involved. Asylum seekers who resort to human
smugglers seriously compromise their claims in the eyes of many states. When
155
The State of the World’s Refugees
combined with the increased tendency of states to detain asylum seekers, the effect is
to stigmatize further asylum seekers in the public mind as criminals.
States have legitimate interests in controlling access to their territory, but they
also have international legal obligations to provide protection to those fleeing persecution. Industrialized states have particular responsibilities in matters of refugee
protection. Not only were they instrumental in drafting the major international
refugee and human rights instruments half a century ago, but more importantly, the
example they set will inevitably influence the way in which refugees are treated by
other states in the years ahead.
The evolution of asylum policy in Europe
At the end of the Second World War, Europe faced a massive humanitarian challenge.
While the continent struggled to rebuild its shattered infrastructure and economy,
over 40 million displaced people needed to be repatriated or resettled. In addition,
in 1956, some 200,000 people fled following the Soviet crushing of the Hungarian
uprising, and in 1968 a smaller number left Czechoslovakia after the Soviet
suppression of the ‘Prague spring’. While the 1951 UN Refugee Convention
provided the international legal framework for the protection of these refugees,
asylum in Europe—and indeed in the West in general—also had an ideological
tinge. It reflected a broad political commitment to take in refugees from communist
countries.
Refugees from other continents first began arriving in Europe in large numbers
during the 1970s. They included refugees fleeing from Latin America as a result of
the military coups in Chile and Uruguay in 1973, and then in Argentina in 1976.
Refugees from these countries found refuge in both Western and Eastern Europe
[see Box 5.4]. Also, although the majority of refugees fleeing from countries in
Indochina after 1975 were resettled in North America, some 230,000 were resettled
in Western Europe.
By the 1980s, increasing numbers of people from all over the world were fleeing
directly to Europe. Unlike the organized resettlement of Indochinese refugees from
countries of first asylum, these were unplanned movements. Spontaneous arrivals of
asylum seekers had been rising since the early 1970s, and in the mid-1980s they
began to cause serious concern. The number of asylum seekers in Western Europe
increased from under 70,000 in 1983 to over 200,000 in 1989. This increase was
linked to the number of internal conflicts and serious human rights violations in
Africa, Asia, Latin America and the Middle East. It was also due to changes in
immigration policy during the economic recession which followed the steep increase
in oil prices in the 1970s. No longer in need of migrant workers, many European
countries ceased to encourage labour migration, although family reunion continued.
As a result, at least some would-be migrants turned to the asylum channel.
Improved communications, easier access to air transport and growing numbers of
156
Asylum in the industrialized world
people seeking better economic and social opportunities world-wide were other
important factors.2
These new, non-European asylum seekers rarely fitted the Cold War mould. Tamil
asylum seekers from Sri Lanka were among the first groups to arrive independently
in large numbers, and they raised particular problems for European states during the
1980s. They included people fleeing for a variety of reasons, including persecution
and the indiscriminate effects of an ill-understood civil war.3 Their arrival generated
fierce debate about states’ obligations towards people who travel half-way around the
world to seek asylum, when they might have found an alternative closer to home—in
this case in Tamil Nadu in India. Many European governments suspected, often
unfairly, that the primary motivation of these asylum seekers was economic. Most
European governments imposed visa requirements on Sri Lankan nationals as a result.
There was great controversy, however, over proposals to return the Tamil asylum
seekers to a place still riven with fierce civil war.
Set against the number of refugees in the developing world, the proportion
arriving in Western Europe was still modest. But the case-by-case determination of
refugee status required by European asylum procedures, and the need to provide at
least minimal social assistance to the asylum seekers, meant that the administrative
Asylum applications submitted in Europe,
North America, Australia and New Zealand,
1980–2000
Figure 7.1
800
700
600
500
400
300
Thousands
200
100
0.0
1980
1982
1984
1986
Europe*
1988
1990
1992
North America
1994
1996
1998
2000
Australia/New Zealand
* For details of countries included, see Annex 10.
Source: Governments.
157
The State of the World’s Refugees
and financial burden escalated. According to one estimate, the total cost of administering asylum procedures and providing social welfare benefits to refugee claimants
in 13 of the major industrialized states rose from around US$500 million in 1983 to
around US$7 billion in 1990.4 The latter figure represented over 12 times the global
UNHCR budget that year.
Asylum after the fall of the Berlin Wall
The fall of the Berlin Wall in November 1989 put the international refugee protection
system in Western Europe under even more serious pressure than had been the case
during the 1980s. Suddenly, people from the former communist bloc were free to
leave their countries. There were concerns about uncontrollable floods of people
pouring into Western Europe. The chaotic exodus from Albania to Italy during the
1990s—particularly in 1991 and 1997—and the mass arrival of refugees from the
former Yugoslavia from 1992 brought home to Western European governments the
fact that they were not immune from forced population movements originating in
their immediate vicinity.
Asylum applications in Western Europe peaked at nearly 700,000 in 1992. As a
result of its liberal asylum laws and its geographic position, the Federal Republic of
Germany received by far the largest proportion of them—over 60 per cent that year,
nearly half of whom were Romanians and Bulgarians. Most did not have a wellfounded fear of persecution, but were anxious to exercise their new-found freedom
of movement. They quickly learned that the right to leave one’s country is not
automatically matched by a right to enter another country.
A new defensiveness appeared in Western European countries’ asylum policies.
Receiving states were not prepared for such large numbers. Existing capacity was
quickly overwhelmed, and states proved unwilling to commit resources commensurate with the scale of the problem. At the same time, tens of thousands of asylum
seekers also arrived from countries outside Europe, including Afghanistan, Angola,
Ghana, Iran, Iraq, Nigeria, Pakistan, Somalia, Sri Lanka,Viet Nam and Zaire.
The prevailing refugee policy framework, with its emphasis on assessment of
each individual claim, appeared increasingly ill-equipped to cope. In 1992, High
Commissioner Sadako Ogata voiced her concern about the future of refugee
protection: ‘As we move into the 1990s there is no doubt that Europe is at a crossroads. Will Europe turn its back on those who are forced to move, or will it
strengthen its long tradition of safeguarding the rights of the oppressed and the
uprooted? Will Europe build new walls, knowing that walls did not stop those who
were fleeing totalitarian persecution in the past?’5
It was in this context that European governments decided to deal with the largescale influx of asylum seekers from the wars in the former Yugoslavia by establishing
temporary protection regimes. In the Federal Republic of Germany, which hosted the
largest numbers of refugees from the region, the government tried in vain to
persuade other European states to engage in ‘burden-sharing’ as a complement to
temporary protection regimes. Then, in 1993, Germany amended its constitution to
158
Asylum in the industrialized world
Box 7.1
European Union asylum policy
Attempts by member states of the
European Union (EU) to create an
‘ever closer union’ have included
moves to harmonize their policies on
immigration and asylum. The documents outlined below are a combination of binding conventions and nonbinding inter-governmental agreements to which most, but not always
all, member states are party.
1986 Single European Act
This committed European Community
member states to creating a single
internal market by the end of 1992.
Although this has been achieved for
goods, services and capital, free
movement of people has proved more
elusive.
1990 Dublin Convention
This established common criteria for
EU member states to determine the
state responsible for examining an
asylum request. It seeks to put an end
to the practice of asylum seekers moving or being moved from country to
country with their claim either being
assessed several times or not at all.
It entered into force for all 15 EU
member states on 1 September 1997,
although states began to implement it
well before then.
1990 Schengen Convention
This seeks to reinforce external border
controls to permit free movement
within participating states. It includes
provisions to strengthen police and
judicial cooperation and to introduce
common visa policies and carrier sanctions. It followed the similar 1985
Schengen Agreement between six EU
member states. The Convention came
into force on 1 September 1993 and
began to be implemented in individual
states from March 1995. All EU member states except Denmark, Ireland
and the United Kingdom are parties.
1992 Treaty on European Union
This treaty—also known as the
Maastricht Treaty—established the
European Union. It incorporated
existing European Community issues
and increased inter-governmental
cooperation on issues including ‘justice and home affairs’. This includes
measures to harmonize asylum and
immigration policies and the introduction of the concept of EU citizenship.
It came into force on 1 November
1993.
1992 London Resolutions
European Community ministers
responsible for immigration approved
three resolutions in London in 1992.
They defined ‘manifestly unfounded’
asylum applications, host (or safe)
third countries which asylum seekers
transited and to which they can be
returned, and countries where there is
generally no serious risk of persecution. These concepts were aimed at
accelerating procedures to assess asylum claims. The resolutions are not
binding, but they have been applied
in EU member states and further
afield.
Other EU Council resolutions and
recommendations
During the 1990s, the EU Council of
Ministers approved a series of resolutions, recommendations and joint
positions, which are also not legally
binding. Among the instruments
adopted are two recommendations on
readmission agreements, approved in
1994 and 1995. These established a
model agreement for returning asylum
seekers whose applications for asylum
had been rejected or deemed
unfounded. Between 1993 and 1996,
a series of ‘burden-sharing’ measures
set out principles of solidarity in situations of large-scale influx. In June
1995, the Council of Ministers
approved a resolution on minimum
guarantees for asylum procedures,
outlining procedural rights and obligations. In March 1996, a Joint Position
was agreed on the harmonized application of the definition of the term
‘refugee’. Many of these measures have
been described by critics as representing harmonization on the basis of a
lowest common denominator.
1997 Treaty of Amsterdam
This includes a commitment by member states to develop common immigration and asylum policies within
five years. Until then, decision-making
will continue to be on an intergovernmental basis, thus allowing
some states, such as those party to
the Schengen Convention, to opt for
closer co-operation even if others do
not wish to do so. After five years,
the development of common asylum
policies will come under the Council
of Ministers’ normal decision-making
procedures, where unanimity is not
always required. The European
Parliament has acquired a limited consultative role in developing these
policies, while the European Court of
Justice is permitted to issue preliminary rulings and to act as a last court
of appeal in interpreting the relevant
EU treaty provisions. The treaty came
into effect on 1 May 1999.
1999 European Council meeting
in Tampere
In October 1999, EU heads of state
and government meeting in Tampere,
Finland, reaffirmed the importance
they attached ‘to absolute respect of
the right to seek asylum’.i They
‘agreed to work towards establishing a
Common European Asylum System,
based on the full and inclusive application of the [1951 UN Refugee]
Convention, thus ensuring that
nobody is sent back to persecution,
i.e. maintaining the principle of nonrefoulement’. This common European
asylum system was initially to include
‘a clear and workable determination of
the State responsible for the examination of an asylum application, common standards for a fair and efficient
asylum procedure, common minimum
conditions of reception of asylum
seekers, and the approximation of
rules on the recognition and content
of the refugee status’. Subsequently,
‘measures on subsidiary forms of
protection offering an appropriate
status to any person in need of such
protection’ were to be agreed.
159
The State of the World’s Refugees
remove its unqualified guarantee of a right to asylum, prompting the development
of new policies aimed at both limiting the admission of asylum seekers and facilitating their return to countries through which they passed. Other governments
across Europe introduced similar restrictive measures, based on three resolutions
approved by European Community ministers responsible for immigration in
December 1992 [see Box 7.1].
As channels for legal entry began to close, asylum seekers, along with other
migrants, turned increasingly to smugglers and traffickers to reach Western Europe.
Many used false documents or destroyed their papers en route. This, in turn,
reinforced public scepticism about the real motives of asylum seekers. In an effort to
counter the growing hostility toward asylum seekers, support groups made efforts
to promote more positive images of refugees and to seek public support for refugee
protection. Throughout this period, these advocacy groups were reluctant to
acknowledge the need for unsuccessful asylum seekers to be returned to their
countries of origin—a factor which helped to polarize the debate on asylum issues.
At the same time, certain political parties and elements of the media often appeared
to be more concerned with playing to racist and xenophobic, anti-immigrant sentiments in an effort to win votes or boost sales. In October 1998, for example, one
local newspaper in the United Kingdom, the Dover Express, went as far as to describe
asylum seekers as ‘human sewage’.6
Main country/territory of origin of asylum
seekers in Western Europe, 1990–99*
Figure 7.2
1.2
1.0
0.8
0.6
0.4
Millions
0.2
Sr
iL
Ira
q
an
k
So a
m
al
Ira Afg
n, ha ia
Is nis
la
m tan
ic
Re
Za Bu p.
ire
lg
/D ari
a
R
Co
ng
Pa o
ki
st
an
In
d
i
Vi
et a
N
am
N
ig
er
ia
Al
ge
ria
Al
ba
n
Le ia
ba
no
n
Ch
in
a
Fo
rm
er
Yu
g
os
la
Ro via
m
an
ia
Fo Tu
rm rk
er ey
U
SS
R
0.0
* For details of countries included, see Annex 11.
160
Asylum in the industrialized world
‘Fortress Europe’
The new, restrictive policies introduced in Western Europe, which were aimed at
combating illegal immigration and abuse of asylum systems, shifted the balance
between refugee protection and immigration control. The term ‘fortress Europe’
became a shorthand for this phenomenon.
Four types of measures were taken to tackle the ‘mixed flows’ of irregular
migrants and refugees with which European countries were confronted. These
measures tended to affect both groups indiscriminately and had the effect of making
it more difficult for people seeking protection to reach a country where they could
ask for it. UNHCR warned as early as 1986: ‘Piecemeal restrictive measures, unilaterally adopted, cannot suffice. Their consequence, more often than not, is to shift
rather than lift the burden and to set in motion a self-defeating chain of events . . . In
the longer term they cannot fail to bring about a general lowering of accepted international standards.’7
First, countries sought to adopt ‘non-arrival’ policies aimed at preventing
improperly documented aliens, who included potential asylum seekers, from
reaching Europe. Visa requirements and ‘carrier sanctions’—fines against transport
companies for bringing in passengers without proper documentation—became
widespread. Some countries began to post immigration liaison officers abroad to
‘intercept’ improperly documented migrants and to prevent them from travelling to
these countries.
Second, for those asylum seekers who managed to arrive at the borders despite
these efforts, ‘diversion’ policies were designed, shifting to other countries the
responsibility for assessing asylum seekers’ claims and providing protection. This
approach was made possible not least by the emergence of Central European
countries as places where refugees could, at least in theory, find protection. After
1989, most of these countries rapidly acceded to the 1951 UN Refugee Convention
and, during the 1990s, UNHCR, the Council of Europe and other agencies, and
Western European governments devoted considerable effort to building the capacity
of these countries to cope with asylum seekers and refugees.
As a result, Western European governments drew up lists of ‘safe third countries’
to the east of the European Union, creating a kind of ‘buffer zone’.8 They concluded
re-admission agreements on the return of illegal entrants with Central and Eastern
European and other governments, and began sending asylum seekers back to ‘safe’
countries through which they had travelled. These agreements rarely contained any
particular guarantees for asylum seekers. They created a risk of ‘chain deportations’,
whereby asylum seekers could be passed from one state to another, without an
assurance that their request for protection would eventually be examined. UNHCR
described this practice as ‘clearly contrary to basic protection principles’ and as not
providing sufficient protection against refoulement.9 Not surprisingly, the Central and
Eastern European countries, with the encouragement of their neighbours to the west,
themselves introduced similar controls to reduce the number of arrivals.
161
The State of the World’s Refugees
Third, governments increasingly opted for a restrictive application of the 1951
UN Refugee Convention in an effort to exclude certain categories of claimants from
the scope of the refugee definition. In some countries this continues to result in
situations where people who have suffered persecution at the hands of ‘non-state
agents’ are not considered to be refugees, and are often offered a lesser form of
protection with fewer rights and benefits [see Box 7.2]. As a result of this and other
factors, the proportion of applicants recognized as refugees under the Convention has
declined. Many of those denied refugee status are given the possibility of remaining
in the countries where they applied for asylum, but with a lesser status than formal
refugee status granted under the 1951 Convention. Examples include ‘‘B’ status’,
‘humanitarian status’ and ‘exceptional leave to remain’.10 Thus, their need for
protection is acknowledged, but the receiving countries’ obligations—especially with
regard to family reunification and the issuing of Convention travel documents—are
kept to a minimum.The multiplicity of statuses gave rise to considerable confusion in
the public mind about who is a ‘real’ refugee.
Finally, various ‘deterrent’ measures were introduced, including the increasingly
widespread automatic detention of asylum seekers, the denial of social assistance, and
the restriction of access to employment.11 In addition, restrictions were placed on the
right of refugees already in the country to bring their family members to join them.
Searching for a common European Union policy
Western European countries’ efforts to adapt their asylum and immigration policies
coincided with efforts to achieve closer economic and political integration through
the creation of a single European market. This involved the removal of all internal
barriers to commerce and the free movement of people within the European
Community, which became the European Union when the Maastricht Treaty on
European Union entered into force in 1993. The wish to remove obstacles to trade
and other flows within the European Union went in parallel with the desire to
maintain control over the movement of people from non-member countries. At the
same time, governments feared that freedom of movement within the European
Union would create numerous new problems in the immigration and asylum
arena. The result was a complex and protracted process, as the 12—and later 15—
member states of the European Union tried to ‘harmonize’ their policies relating to
border controls, immigration and asylum [see Box 7.1].12
Much of the immigration and asylum-related activity during the 1990s focused
on coordinating and tightening member states’ admission policies. The 1990
Schengen Convention included provisions for reinforced police and judicial
cooperation, common visa policies, and the strengthening of carrier sanctions. The
1990 Dublin Convention listed criteria to determine, among contracting parties,
which member state was responsible for examining an asylum request. It was
designed to prevent asylum seekers from ‘shopping around’ for the ‘best’ country
to hear their claim, and to solve the problem of asylum seekers for whom no
country was willing to take responsibility, a phenomenon known as ‘refugees in orbit’.
162
Asylum in the industrialized world
Box 7.2
Non-state agents of persecution
Picture yourself in a village where
government troops and rebels harass
you, demand food, beat up your family and threaten to kill you or cut off
your hands. You decide to flee from
an intolerable situation and request
asylum in another country. When you
describe your plight to an immigration officer, you explain that the
most serious threats and harassment
came from the rebels. The immigration officer looks gravely at you and
says that you are not a real refugee
because it was not the government
forces that persecuted you, but an
armed group which is not an instrument of the state. Of course, you
could not care less whether you are
tortured by one or the other. But
some countries do. They do not recognize as refugees people who are
persecuted by so-called ‘non-state
agents’.
The 1951 UN Refugee Convention
provides protection against persecution. Persecution is not defined, nor
is anything said about the perpetrators of such persecution. This has
led to much debate about the extent
of the Convention’s protection. When
one speaks of persecution, one often
thinks of sinister state services, the
use of torture by police officers, or
soldiers oppressing civilians. At the
time of the Holocaust, an entire
state machinery was engaged in the
persecution of particular people.
When the drafters of the Convention
formulated the definition of a
‘refugee’, they were no doubt thinking primarily of persecution by state
services.
One of the main purposes of the
1951 UN Refugee Convention is to
prevent people from being returned
to places where they may suffer serious violations of human rights or
persecution. It does not say that a
state must be responsible for the
persecution. Any group which holds
substantial power in a country can
persecute. UNHCR has therefore con-
sistently advanced the view that the
Convention applies to any person
who has a well-founded fear of persecution, regardless of who is
responsible for the persecution.
UNHCR’s position is shared by the
overwhelming majority of the states
party to the Convention. In some
countries, however, claims to refugee
status will fail if the feared persecution emanates from non-state actors
and the government of the country
of origin is unable or unwilling to
provide protection. This minority
view is held by France, Germany,
Italy and Switzerland.
Other international human rights
treaties, such as the 1984
Convention Against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment and the
1950 European Convention for the
Protection of Human Rights and
Fundamental Freedoms, make no distinction between the state and other
actors who are responsible for torture or other inhuman or degrading
treatment. A person should be protected against such treatment
regardless of who is the perpetrator.
The power of enforcement through
police and armed forces no longer
rests exclusively with states. A
country like Somalia does not have
a government with firm control over
its territory and its people; indeed,
it has no government that enjoys
international recognition. Instead, it
has fiefdoms where armed bands and
warlords control different stretches
of land. The dominant political and
military power in Afghanistan, the
Taliban, is not recognized by some
other countries as a legitimate state
agent. In countries such as Angola,
Colombia and Sri Lanka, groups other
than the government exercise power
over entire regions.
Persecution is not the exclusive
domain of the state, or even of nongovernmental armed groups. It can
also be perpetrated by a sect, a
clan, or a family. Traditional customs may amount to persecution.
If the government is unable or
unwilling to suppress such customs, people may be forced to flee
their country to save their life,
liberty or physical integrity. In
1985, the UNHCR Executive
Committee recognized that the
vulnerable situation of women frequently exposes them to physical
violence, sexual abuse and discrimination. It agreed that women
who face harsh or inhuman treatment because they have transgressed the social mores of the
society in which they live may be
included under the terms of the
1951 UN Refugee Convention.
An example of gender-based persecution is the case of two
Pakistani women who claimed
refugee status in the United
Kingdom on the grounds that they
were maltreated to the point of
being persecuted by their husbands. According to the House of
Lords, the highest panel of judges
in the United Kingdom, they were
refugees under the Convention
since the government of Pakistan
was unwilling to do anything to
protect them due to the fact that
they were women.ii
Societies which discriminate
against women or homosexuals
may condone persecution on the
grounds of sex or sexual orientation. Some societies permit, even
encourage, female genital mutilation. For certain women or girls,
this custom may amount to persecution. If they refuse to submit to
the custom and, by doing so,
‘transgress the social mores’, will
the state step in to protect them?
In the absence of state protection, their only way to avoid serious harm is to flee their country
and become refugees.
163
The State of the World’s Refugees
While the Schengen and Dublin Conventions are binding on states which have
ratified them, other harmonization activities have taken place outside a binding
framework in a far from transparent inter-governmental process. Even so, agreement
among European Union countries more often than not could only be reached at the
level of the lowest common denominator. In one of the most crucial discussions,
European Union governments sought to reach agreement on how to interpret the
refugee definition given in the 1951 UN Refugee Convention. Largely because of
Germany’s narrow interpretation of the definition, and France’s desire to limit its
obligations vis-à-vis Algerians fleeing their country, the European Union’s March 1996
Joint Position on a harmonized application of the definition of the term ‘refugee’
takes a restrictive approach, regarding persecution as being ‘generally’ at the hands of
the state.13 As a result, the treatment of persons fleeing persecution perpetrated by
non-state actors continues to differ from one state to another. Indeed, there has been
considerable variation among member states in their implementation of supposedly
harmonized policies on asylum.14
Within the European Union, some countries receive significantly higher numbers
of asylum applications than others. Having taken in 350,000 Bosnians in the early
Central European asylum applications,
1990–99*
Figure 7.3
180
160
140
120
100
80
60
Thousands
40
20
0
1990
1991
1992
1993
1994
1995
Applications submitted in
Western Europe by
Central European citizens
1996
1997
1998
1999
2000
Total applications
submitted in Central
Europe
* Western Europe comprises the European Union, Norway and Switzerland. Central Europe comprises Bulgaria, Czech Republic,
Hungary, Poland, Romania and Slovakia.
Source: Governments.
164
Asylum in the industrialized world
1990s, the German government pushed hard for some kind of burden-sharing
arrangement. In 1995, the European Union adopted a non-binding Resolution on
burden-sharing with regard to the admission and residence of displaced persons on a
temporary basis.15 The mass outflow of refugees from Bosnia and Herzegovina in the
mid-1990s and from Kosovo in the late 1990s meant that the issue of burden-sharing
was a prominent issue in Europe throughout the decade. It remains a contentious one.
Germany’s share of Western Europe’s asylum applications nevertheless declined from
63 per cent at the beginning of the 1990s to 23 per cent in 1999.
The process of harmonizing asylum policies in Europe continues. UNHCR has
endorsed these efforts where they have been aimed at making asylum systems fairer,
more efficient and more predictable, not only for the benefit of governments but also
for refugees and asylum seekers themselves. In many cases, however, it is the standard
of the lowest common denominator which has prevailed, resulting in diminished
rather than enhanced protection for refugees.
Temporary protection and the former Yugoslavia
Until the 1990s, it was generally assumed that when individuals were recognized as
refugees in Europe, they would be able to remain in their country of asylum indefinitely. During the conflict in the former Yugoslavia, however, a new approach to
asylum was introduced whereby states offered temporary protection to people
fleeing the conflict, meaning that they would be expected to return once they conflict
was over. UNHCR endorses temporary protection as an emergency response to an
Annual number of asylum seekers granted
asylum in Europe, 1990–99
Figure 7.4
140
120
100
80
60
Thousands
40
20
0
1990
1991
1992
1993
1994
1951 UN Convention refugees*
1995
1996
1997
1998
1999
Humanitarian statuses
* 1999 figure excludes Austria and France. For further details and explanations, see Annex 10.
Source: Governments.
165
The State of the World’s Refugees
Box 7.3
Funding trends
Global government spending on
humanitarian assistance has
increased steadily in volume over
the last 50 years. It rose dramatically
in the early 1990s, peaking at
US$5.7 billion in 1994. As a share
of gross domestic product (GDP),
however, humanitarian assistance
dropped between 1990 and 1998
from 0.03 per cent to 0.02 per cent,
or 20 cents out of each US$1,000.iii
The proportion of official development assistance (ODA) allocated by
governments to humanitarian
assistance, as opposed to long-term
development, also grew significantly
in the early 1990s. At its height, in
1994, it represented 10 per cent of
total ODA. The proportion fell in the
latter part of the decade, however,
dropping to around six per cent of
total ODA by 1998.iv
While the total volume of government
funding for humanitarian operations
has increased, the proportion of this
channelled through international
Contributions to UNHCR as a
percentage of GDP by major
donors, 1999*
organizations such as UNHCR, as
opposed to that given directly to
governments of recipient countries, or
channelled through non-governmental
organizations in the donor’s own
country, has decreased. Increasingly,
governments are giving priority to
bilateral funding arrangements rather
than multilateral assistance.
UNHCR expenditure and
funding sources
UNHCR’s budget has risen dramatically
over the 50 years of its existence,
as the extent and scope of the
organization’s work has expanded.
From a budget of only US$300,000 in
1951, annual expenditure grew to
around US$100 million in the mid1970s. Two significant increases then
took place in the late 1970s and
early 1990s.
The first major increase was
between 1978 and 1980, when
expenditure more than tripled, from
US$145 million to US$510 million.
Figure 7.5
This was at the time of the major
refugee emergencies in Indochina.
The second, equally large increase,
was between 1990 and 1993, when
expenditure more than doubled, from
US$564 million to US$1.3 billion.
This increase was mainly because of
the large repatriation operations at
the beginning of the decade and the
major relief operations in northern
Iraq and the former Yugoslavia.
Expenditure subsequently dropped to
US$887 million in 1998, and then
rose to just over US$1 billion in 1999
as a result of the Kosovo crisis. None
of these figures take into account
contributions of goods such as tents
and medicines, or assistance with
transportation and other services.
If these were taken into account, the
figures would be significantly higher.
UNHCR’s relative spending in different
regions has reflected the changing
geographical focus and operational
scope of the organization. In the
early 1960s, more than half of
UNHCR’s expenditure was on
Top 15 contributors to UNHCR,
1980–99
Figure 7.6
24
0.035
22
0.030
20
0.025
18
0.020
16
0.015
14
12
0.005
10
0.000
6
4
2
0
Eu
ro
pe
Un
it
an ed S
Co ta
m tes
m
iss
ion
Ja
pa
Un
n
S
ite we
d
d
Ki en
ng
Ne do
th m
er
lan
Ge ds
rm
an
No y
rw
De ay
nm
ar
C k
Sw ana
itz da
er
lan
Fi d
nl
an
d
It
Au aly
str
ali
Fr a
an
ce
* 1998 gross domestic product.
Source: World Bank, World Development Report 1999/2000, pp. 252–3; UNHCR.
8
Per cent
No
rw
Sw ay
ed
De en
nm
a
F rk
Ne inla
th nd
er
Sw lan
itz ds
er
la
A nd
Un ust
ite rali
a
d
St
at
e
Ca s
na
da
Eu Uni
ro ted Jap
pe
a
an Kin n
Co gdo
m
m m
iss
Ge ion
rm
an
Fr y
an
ce
Ita
ly
Per cent
0.010
166
Asylum in the industrialized world
programmes for European refugees
still remaining from the Second
World War. Less than a decade later,
European spending accounted for
only seven per cent of the total
budget. By 1999, UNHCR had programmes in over 100 countries.
In the 1990s, UNHCR spent an average of US$40 to US$50 per year for
each ‘person of concern’—whether
refugee, asylum seeker, returnee,
internally dis- placed person or
other—although there were significant disparities in per capita expenditure from region to region.
UNHCR’s main source of funding has
always been voluntary contributions,
mainly from governments. During
the 1990s, an average of less than
three per cent of the organization’s
total annual income came from the
UN regular budget. Most government
funding comes from a small number
of key industrialized states. In
1999, for example, North America,
Japan and western European countries accounted for 97 per cent of
UNHCR expenditure, 1950–2000*
all government contributions to
UNHCR.
Increasingly, donor countries tend
to earmark funds pledged to UNHCR
for particular countries, programmes
or projects, depending on their
national priorities. In 1999, only 20
per cent of contributions were not
earmarked, significantly reducing the
organization’s flexibility to use funds
where they are most needed. In
1999, UNHCR received just over 90
per cent of the funds requested for
programmes in the former
Yugoslavia, while it received only
around 60 per cent of those requested
for some of its programmes in Africa.
Indeed, the international community
spent some US$120 per person of
concern to UNHCR in the former
Yugoslavia during 1999, which was
more than three times the amount
spent in West Africa (about US$35
per person). Even after taking into
account the different costs due to
climatic differences, the disparity
remains great.
Figure 7.7
1,400
Like other humanitarian organizations, UNHCR is attempting to
broaden its donor base. For
instance, UNHCR is encouraging the
private sector to donate funds for
humanitarian programmes and to
participate in post-conflict reconstruction. In 1999, in response
largely to events in Kosovo and East
Timor, UNHCR received an estimated
US$30 million in contri-butions
from the general public, foundations, corporations and non-governmental organizations. In some
cases, companies have offered their
services free of charge in refugee
emergencies. During the Kosovo crisis, for example, Microsoft provided
UNHCR with computer equipment
and software that was used to register the refugees. In approaching
commercial corporations and the
private sector in general, UNHCR
has emphasized its belief that
meeting the basic needs of refugees
and displaced persons is a global
responsibility.
UNHCR expenditure by region,
1990–2000*
1,200
Asia and
Oceania
11.3%
1,000
Figure 7.8
Americas
4.1%
Millions of US dollars
800
600
Africa
40%
Southwest Asia,
North Africa and
Middle East
12.9%
400
200
0
1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000
* This includes United Nations regular budget, general programmes and special programmes. Projected figure
for 2000.
Europe
31.7%
* Actual expenditure for 1990–99 and projections for 2000.
167
The State of the World’s Refugees
overwhelming situation, where there are self-evident protection needs and where
there is little or no possibility of determining such needs on an individual basis in
the short term.The organization considers that the purpose of temporary protection
is to ensure immediate access to safety and the protection of basic human rights,
including protection from refoulement, in countries directly affected by a large-scale
influx. Temporary protection may also serve to enhance prospects for a coherent
regional response, beyond the immediately affected areas.16
In 1992, UNHCR called on states to offer at least temporary protection to the
hundreds of thousands of people fleeing the conflict in the former Yugoslavia.
Reaction to UNHCR’s appeal varied. As the exodus continued, tensions over the
reception of the refugees in Western Europe grew. In 1993, European Union
governments were the first to suggest the creation of ‘safe areas’ in Bosnia and
Herzegovina. They agreed that protection and assistance ‘should wherever possible
be provided in the region of origin’ and that ‘displaced persons should be helped to
remain in safe areas situated as close as possible to their homes’.17 The massacres
which later took place, when Bosnian Serb forces overran the ‘safe areas’ of
Srebrenica and Zepa in 1995, showed just how precarious this approach can be.18
When temporary protection was offered in Western Europe to refugees from
the former Yugoslavia, it was not without problems.19 Questions were raised
regarding the entitlements of people who had been granted temporary protection,
as well as the extent of receiving states’ responsibilities towards the refugees once
the war was over. Even before the ink was dry on the December 1995 Dayton Peace
Agreement, a vigorous debate was under way about return. Should it be voluntary
or enforced? What constituted return ‘in safety and dignity’? Should refugees be
required to return if they could not go back to their home areas but would have to
settle in another part of the country? The controversy intensified in 1996, when it
became clear that large-scale, voluntary returns were not likely to take place quickly.
When open conflict erupted in Kosovo in both 1998 and 1999, European
governments were at first reluctant to repeat the temporary protection experiment.
They continued to channel asylum seekers from Kosovo into regular status determination procedures, as had been the case throughout the 1990s. The numbers rose
rapidly from early 1999, and when the NATO bombing of the Federal Republic of
Yugoslavia began on 24 March 1999, a mass exodus of Kosovo Albanians to Albania
and the former Yugoslav Republic of Macedonia began. Fears mounted of a new,
uncontrollable flow of refugees from the Balkans.
In an effort to keep the door of the former Yugoslav Republic of Macedonia open
to the fleeing Kosovo Albanians, and thereby to preserve asylum in the region for the
majority of the refugees, a Humanitarian Evacuation Programme was launched, in
which UNHCR played a leading role. During May and June 1999, approximately
92,000 Kosovo Albanian refugees were flown out of the former Yugoslav Republic of
Macedonia to more than two dozen receiving countries. Although the majority
returned home by the end of the year, this particular example of international burden
sharing appears likely to remain the exception rather than the rule.
168
Asylum in the industrialized world
Albanians on the quayside of the port of Brindisi, southern Italy. Thousands of Albanians fled the political upheavals in their
country in the early 1990s. (ASSOCIATED PRESS/1991)
The Treaty of Amsterdam and beyond
Despite the resources devoted to border control measures, the enforcement approach
to migration and asylum has not solved the problem of large numbers of migrants
entering Europe in an irregular manner. Instead, it has tended to drive both migrants
and asylum seekers into the hands of smugglers and traffickers, compounding the
problems for governments and often putting the individuals themselves at great risk.20
In their attempt to control this complex issue, European Union governments have
taken further measures to strengthen their harmonization efforts. The Treaty of
Amsterdam, which was signed in 1997 and which came into force in May 1999,
represents a milestone in the development of a European Union asylum policy. It sets
out an agenda to move asylum matters over a five-year period from an area where they
are subject to inter-governmental agreement by the member states to one where
policy development and decision-taking clearly fall within the competence of the
European Union institutions. This development should allow UNHCR and other
organizations to work more closely and systematically with the institutions of the
European Union, including the European Commission, which under the Treaty has
greater powers to initiate common asylum policy measures.
169
The State of the World’s Refugees
At the same time, however, governments’ frustration over their inability to control
migration has led to some radical proposals, such as the one contained in a ‘migration
strategy’ paper prepared during the second half of 1998 under the aegis of the
Austrian presidency of the European Union. In addition to proposing a ‘defence line’
to protect Europe from illegal migrants seeking employment or asylum, the strategy
paper called for the 1951 UN Refugee Convention to be amended or replaced
altogether. The implication was that the Convention was to blame for the inability of
governments to curb unwanted migration—a purpose for which it was never
designed. Widespread criticism of the paper prompted its withdrawal, but similar
rumblings have been heard elsewhere in Europe and as far afield as Australia.
In contrast to these developments, the heads of state and government of the
European Union, meeting in October 1999 in Tampere, Finland, reaffirmed their
‘absolute respect of the right to seek asylum’, the need for common policies which
‘offer guarantees to those who seek protection in or access to the European Union’,
and their commitment to establish a common European asylum system ‘based on the
full and inclusive application of the Geneva [Refugee] Convention’.21 European leaders
outlined a range of measures to be taken, ranging from common minimum conditions of reception of asylum seekers to measures on subsidiary forms of protection
and temporary protection. They included a ‘comprehensive approach to migration
addressing political, human rights and development issues in countries and regions of
origin and transit’. The challenge now is to ensure that these assurances are translated
into reality—a difficult task given the range of measures which the same governments
Asylum applications submitted in main receiving
industrialized states, 1980–99*
Figure 7.9
3.0
2.5
2.0
1.5
0.5
* Applications to the United Kingdom and United States include joint applications for more than one person.
Applications to all other countries are for one person only.
Source: Governments.
170
m
iu
lg
Be
ria
st
Au
la
nd
s
nd
et
he
r
er
la
itz
Sw
N
n
ed
e
Sw
m
Ki
d
U
ni
te
ni
U
ng
do
da
Ca
na
te
d
an
ce
rm
Ge
Fr
St
at
es
0
an
y
Millions
1.0
Asylum in the industrialized world
have introduced to prevent asylum seekers from gaining access to their territory.
UNHCR has urged European countries ‘to ensure that policies and practices designed
to control irregular immigration do not jeopardize the rights of refugees and asylum
seekers’.22
In parallel with these developments, the Council of Europe, whose membership
includes the vast majority of European states, not just the 15 European Union member
states, has worked to strengthen the protection of refugee rights as basic human rights.
In 1991, the European Court of Human Rights clearly established the principle that
asylum seekers should not be returned to a country where they would be exposed to
the danger of torture or ill-treatment.23 Provisions of the 1950 European Convention
for the Protection of Human Rights and Fundamental Freedoms, regarding issues such
as detention, the right to family life and the right to effective remedy, have also been
shown to apply to asylum seekers and refugees. As such, the work of the Council of
Europe underpins and complements that of the European Union and also enhances
the rights of refugees and asylum seekers across the continent.
Another key factor in the future of refugee protection in Europe will be the ability
of countries in Central and Eastern Europe to respond to requests for protection. In the
decade since the end of the Cold War, many of these countries have made huge strides
in establishing their own asylum systems and are now no longer simply countries
through which asylum seekers pass. In 1999, for example, Hungary received more
asylum applications than Denmark and Finland combined [see also Figure 7.3].
Number of asylum applications per 1,000
inhabitants submitted in main receiving
industrialized states, 1999*
Figure 7.10
7
6
5
4
3
2
1
Sw
i
tz
er
la
Be nd
N lgi
et
he um
rla
nd
Au s
st
r
N ia
or
wa
Ire y
la
Sw nd
ed
U
ni De en
te nm
d
Ki ark
ng
d
Ge om
rm
a
H ny
un
ga
Cz
r
ec Can y
h
a
Re da
pu
b
Fi lic
nl
an
d
Ita
l
Fr y
a
Au nce
So str
ut ali
a
h
Af
ric
a
U
ni Sp
te
d ain
St
at
e
Po s
la
nd
0
* Applications to the United Kingdom and United States include joint applications for more than one person. Applications to all other
countries are for one person only. Industrialized countries receiving 2,500 or more asylum applications during 1999. For details and
explanations, see Annex 10.
171
The State of the World’s Refugees
Political map of Europe, 1999
Map 7.1
FINLAND
NORWAY
LEGEND
ICELAND
International boundary
European Union member
ESTONIA
North Sea
Bal
tic S
ea
SWEDEN
DENMARK
European Union candidate
member
Council of Europe member
LATVIA
KALININGRAD
(RUSSIAN FED.)
LITHUANIA
UNITED KINGDOM
RUSSIAN FEDERATION
BELARUS
IRELAND
POLAND
0
NETHERLANDS
500
250
Kilometres
GERMANY
BELGIUM
CZECH REPUBLIC
UKRAINE
SLOVAKIA
LUXEMBOURG
LIECHTENSTEIN
REPUBLIC
OF MOLDOVA
AUSTRIA
FRANCE
HUNGARY
SWITZERLAND
Atlantic Ocean
SLOVENIA
ROMANIA
CROATIA
ITALY
SAN MARINO
BOSNIA AND
HERZEGOVINA FEDERAL
REP. OF
YUGOSLAVIA
MONACO
ANDORRA
Black Sea
BULGARIA
GEORGIA
F.Y.R.
MACEDONIA
ALBANIA
PORTUGAL
GREECE
SPAIN
MALTA
Mediterranean
Sea
TURKEY
CYPRUS
At the end of the 1990s, Europe again stood at a crossroads. In the years ahead,
changing demographic trends may make governments more receptive towards
immigration. Some analysts maintain that as a result of low birth rates and ageing
populations, significant numbers of immigrants would be needed over the next halfcentury, just to keep the ratio of retired people to active workers at current levels. A
recent report by the United Nations Population Division estimated that, at current
birth and death rates, an average of 1.4 million immigrants per year would be needed
in the European Union between 1995 and 2050, for it to keep the ratio of the
working population to the non-working population constant at the 1995 level. The
report also mentions that, according to recent national estimates, net migration into
the European Union amounted to an average of 857,000 people per year from 1990
to 1998.24
172
Asylum in the industrialized world
If governments react by significantly easing restrictions on legal immigration,
they may discover that this takes some of the pressure off the asylum channel, and
public and political support for the institution of asylum could be strengthened.
Alternatively, an increase in immigration may lead to more irregular migration.
Nevertheless, if migration possibilities remain elusive, there is every reason to expect
that both asylum seekers and migrants will continue to crowd the asylum process,
and the institution of asylum will remain under strain.The changing dynamics of the
migration debate may well determine the future of refugee protection in Europe.
Resettlement and asylum in North America
Unlike Europe, the United States and Canada are traditional countries of immigration. As such, they are accustomed to planning for the arrival of newcomers, and
to integrating them into their societies. Refugees have long been regarded as one
category of immigrants, and many of those displaced by the Second World War found
new homes in North America in the framework of ongoing immigration programmes. Both countries have long had well-defined refugee intakes and, in both, the
government and the voluntary sector work closely together to resettle refugees.
During the Cold War years, both the United States and Canada welcomed
refugees from the communist bloc. But their geographical location, flanked by the
Pacific and Atlantic Oceans, meant that it was not until the 1980s that asylum
seekers—as opposed to refugees selected for resettlement—began to arrive spontaneously and in large numbers in North America. Systems designed to deal with
relatively small numbers of individual asylum applications could not respond to the
demand, and calls for change came from many quarters. Like their European counterparts, both the United States and Canada have struggled to find the right balance
between refugee protection and immigration control, with the added challenge of
having to strike the right balance between the resettlement of refugees and the
admission of immigrants.
US policy towards refugees during the Cold War
Between 1975 and 1999, the United States offered permanent resettlement to more
than two million refugees, including some 1.3 million Indochinese. During this
period, the United States accepted more refugees for resettlement than the rest of the
world put together. Throughout the Cold War years, the political value of accepting
refugees from communism guaranteed European refugees a warm welcome. Despite
being a key UNHCR supporter, the United States never acceded to the 1951 UN
Refugee Convention, although in 1968 it acceded to its 1967 Protocol, thereby
agreeing to accept most of the obligations of the 1951 Convention. From the late
1950s, US law defined a refugee as a person fleeing communism or a Middle East
country, and refugee policy was almost entirely dictated by foreign policy interests.25
173
The State of the World’s Refugees
The effect was that these people were assured protection in the United States, while
others were not assured the same protection.
From the mid-1970s, the United States began to resettle large numbers of
Vietnamese refugees. This resettlement programme had its roots in a sense of obligation toward former allies in Southeast Asia and in the fear that the refugee flows
could destabilize the remaining non-communist countries in the region. In addition,
when there was a foreign policy interest to do so, the United States admitted people
as refugees directly from their countries of origin. These ‘in-country’ processing
arrangements were used, for example, to resettle Jews and dissidents from the Soviet
Union, those seeking refuge from the regimes of Nicolae Ceausescu in Romania and
Fidel Castro in Cuba, as well as Vietnamese resettled under the UNHCR-sponsored
Orderly Departure Programme.
In the late 1970s, members of Congress joined forces with refugee advocates in
the non-governmental sector to bring about a reform of US refugee policy. The
administration of President Jimmy Carter, keen to highlight human rights promotion
as a centrepiece of its foreign policy, responded positively. In 1979, a new Office of
the US Coordinator for Refugee Affairs was created, and the following year the 1980
Refugee Act incorporated the 1951 UN Refugee Convention definition and introduced a statutory asylum procedure. The new law did not, however, remove refugee
policy entirely from presidential control. It allowed the executive branch considerable latitude in shaping refugee policy, which was often harnessed to foreign policy
objectives.
A case in point concerns Salvadoran and Guatemalan asylum seekers in the
1980s. The United States denied the asylum claims of the overwhelming majority of
asylum seekers from these two countries.This was at a time when the US government
was accepting large numbers of refugees who were fleeing the left-wing Sandinista
government in Nicaragua. US officials maintained that they were not discriminating
against Salvadoran and Guatemalan nationals. Rather, they said that most of them did
not qualify as refugees either because they had migrated for economic reasons or,
even if their reasons were not economic, they had not suffered or did not fear
individual persecution. Refugee advocates suggested that the denial of asylum was
due to the fact that they were fleeing right-wing governments supported by the
United States. In 1985, advocacy groups challenged the US government’s treatment
of Salvadoran and Guatemalan asylum seekers in the courts, alleging bias in the US
determination of these claims. In 1990, the government agreed to settle the case, and
to review the claims of all asylum seekers from these two countries denied asylum
between 1980 and 1990.26
Similar allegations of bias have been raised regarding the differing treatment of
Haitian and Cuban asylum seekers. For the first 25 years after Fidel Castro came to
power in Cuba in 1959, the United States had an open-door policy towards asylum
seekers from Cuba. This policy was severely tested in 1980, when Castro relaxed
exit restrictions and over 125,000 Cubans (including over 8,000 criminals and
psychiatric patients) set sail for Florida in the ‘Mariel boatlift’. Despite the controversy which this provoked, most were allowed to remain. Yet during that same
174
Asylum in the industrialized world
period, Haitians were interdicted at sea, denied asylum in the United States, and sent
back to Haiti [see Box 7.2]. While the government maintained that many Haitians
were fleeing for economic reasons, refugee advocates remained critical of the US
government’s actions.
Emigration pressures continued to rise in Cuba, especially after the dissolution of
the former Soviet Union, its principal ally, in 1991. As economic and social conditions deteriorated in Cuba, the numbers of Cubans attempting to reach the United
States continued to rise. Amidst growing anti-immigrant sentiment in the United
States, a new exodus of Cubans began in the early 1990s. More than 35,000 ‘rafters’
were picked up by the US Coast Guard in mid-1994. The administration of President
Bill Clinton decided to interdict the Cubans and detain them at the US naval base in
Guantánamo, Cuba, and other locations in the region. To halt the flow, the US
government reached a controversial agreement with Cuba in September 1994, in
which Cuba reverted to its previous policy whereby Cuban citizens required a permit
to leave the country, which government authorities could issue or not at their
discretion.27 For its part, the US government promised to admit 20,000 Cubans each
year through other immigration admission channels.
Proportion of asylum seekers recognized as
refugees or granted humanitarian status,
1990–2000
Figure 7.11
80
70
60
60
40
30
Per cent
20
10
0
1990
1991
Canada
1992
1993
1994
United States
1995
1996
1997
1998
Australia
1999
2000
European Union*
* 1999 figure excludes Austria, France and Luxembourg. For further details and explanations, see Annex 10.
175
The State of the World’s Refugees
Box 7.4
Haitian asylum seekers
Since the 1970s, successive US governments’ treatment of migrants
arriving by boat has severely
restricted Haitians’ access to asylum
procedures. US government statistics
show that between 1981 and 1991,
over 22,000 Haitians were interdicted at sea, and that only 28 of these
were allowed into the United States
to pursue asylum claims.
UNHCR, other humanitarian organizations and advocacy groups have
repeatedly argued that the United
States’ interdiction and return of
Haitian asylum seekers—without the
implementation of appropriate procedures to identify those with a wellfounded fear of persecution—could
lead to forcible return to an unsafe
place (refoulement), which is prohibited under Article 33 of the 1951
UN Refugee Convention. In the early
1990s, advocacy groups in the
United States challenged the government’s interdiction policy in the federal courts, and the issue was
appealed to the highest US court,
the Supreme Court.
In 1993, the Supreme Court ruled
that the United States’ obligation
under Article 33 did not apply outside US territory, where the Haitians
were interdicted.v By contrast,
UNHCR maintains that the principle
of non-refoulement applies wherever
states may act.vi In 1997, the
Organization of American States’
Inter-American Commission on
Human Rights contradicted the US
Supreme Court’s position, declaring
that the guarantees under Article 33
also apply outside national borders.vii
Some advocacy groups have argued
that because of its leading role in
international affairs, the US government’s actions towards Haitians have
176
contributed to the undermining of
the principle of asylum elsewhere
around the globe. They argue that if
the world’s richest nation can turn
asylum seekers away, then poor
nations ill-equipped to handle large
refugee influxes should be able to do
so too. During the 1980s, while the
United States supported UNHCR’s
efforts to prevent countries in
Southeast Asia from forcibly returning
Vietnamese boat people, at least one
of the governments responsible for
doing so countered that what it was
doing was no different from what the
United States was doing to Haitians.
Double standards
Throughout the 1960s and 1970s,
there was great disparity in the way
in which US authorities treated asylum seekers from Cuba and Haiti.
Critics argue that the US government treated Cubans as refugees
because they were fleeing a communist government, while it viewed
Haitians as economic migrants,
despite manifest evidence of widespread persecution in Haiti. It is
often pointed out, particularly by
African-American political leaders,
that those arriving from Cuba were
predominantly white, while those
from Haiti were mainly black.
For 30 years, two harsh dictators
ruled Haiti: first, François
Duvalier—known as ‘Papa Doc’—
from 1957 to 1971, and then his
son Jean-Claude Duvalier—known as
‘Baby Doc’—from 1971 to 1986. The
country’s first democratically-elected
president, former priest JeanBertrand Aristide, took office in
February 1991, but was ousted
seven months later by a military
coup. In July 1993, the military
leaders, in the face of international sanctions and pressure,
agreed to step down but did not.
They remained in power until late
1994, when the United States
intervened and restored the
Aristide government.
Haitians fleeing political repression, widespread human rights violations, and deteriorating economic conditions had started reaching
Florida by boat in the early 1970s.
Many sought asylum, though most
applications were denied. Others
were absorbed into Miami’s growing Haitian community.
In 1978, the US government
began carrying out the ‘Haitian
Program’, aimed at deterring
Haitian asylum seekers and
migrants from entering the United
States. Critics saw this as a programme to deny Haitians fair hearings and hasten their deportation.
Indeed, US courts halted the programme in 1979 and ordered new
hearings for rejected Haitian asylum seekers still in the United
States.
Haitian boat arrivals increased in
1979 and accelerated dramatically
in 1980, the same year that more
than 125,000 Cubans arrived in
the United States during the
‘Mariel boatlift’. Immediately
afterwards, many Haitians benefited from pressure on the US
government to treat Haitians and
Cubans equally and equitably.
Haitian arrivals were awarded a
special ‘entrant’ status, permitting them to stay while their status was resolved, but, unlike the
Cubans, barring them from applying for permanent residence.
Asylum in the industrialized world
The interdiction programme
In late 1981, the new administration of President Ronald Reagan
took a series of steps that paved
the way for the interdiction of
Haitians on the high seas. The US
government agreed with the Haitian
authorities in Port-au-Prince that it
would return Haitians who left illegally. President Reagan ordered the
US Coast Guard to interdict vessels
that might be carrying undocumented aliens to the United States. If it
determined that the passengers
were seeking to enter the United
States without documentation from
a country with which the United
States had an agreement to return
illegal migrants, the Coast Guard
was to return them to that country.
Haiti was the only country with
which the United States had such
an agreement at the time.
The Reagan administration instructed the Coast Guard not to return
people who might be refugees. Yet
the procedures that it put in place
to identify potential refugees
aboard Coast Guard boats were such
that it was extremely difficult for
anyone to qualify for entry into the
United States to apply for asylum.
Following the September 1991 coup
that ousted President Aristide, the
United States temporarily halted
the interdiction programme. The
programme was restarted a month
later, but this time, instead of
returning interdicted Haitians to
Haiti, they were taken for ‘screening’ to the US naval base in
Guantánamo, Cuba. According to
some US non-governmental organizations and at least one
US federal judge, Haitians at the
Guantánamo base were kept in
prison-like conditions.viii US government statistics indicate that some
10,500 of the 34,000 Haitians interdicted after the 1991 coup were
found to have a credible fear of
persecution and were allowed to
enter the United States to apply for
asylum. Although only a minority
actually received asylum, most were
ultimately able to remain in the
United States legally.
In May 1992, President George Bush
again ordered that all interdicted
Haitians be returned to Haiti, this
time without even the cursory
refugee screening that was previously in place. Although Bill Clinton
criticized the Bush policy as ‘cruel’
while running for office, once elected president he continued it. The
policy did not deter Haitians from
fleeing, however, and in 1992 the
Coast Guard interdicted 31,400
Haitians. While this number fell to
2,400 the following year, it shot up
again to 25,000 in 1994, before
falling to an average of 1,150 over
the next five years.
In June 1994, President Clinton
instituted a new and short-lived
procedure for interdicted Haitians.
The United States carried out full
refugee determination procedures
on board the USNS Comfort,
anchored off the coast of Jamaica.
Those granted refugee status were
resettled in the United States;
those rejected were returned to
Haiti. A record number of those
processed on the Comfort were
granted refugee status. The number
of Haitians picked up and awaiting
refugee interviews grew so rapid l y —
the Coast Guard picked up 3,247 on
one day in July—that the United
States ended the on-board process-
ing. It then sent those still on
the Comfort and all newly interdicted Haitians to Guantánamo.
The US authorities told the
Haitians they could remain there
as long as it was unsafe for them
to return to Haiti, but added that
none would be permitted to enter
the United States. As a result,
the Coast Guard took more than
21,000 Haitians to Guantánamo.
Although by the end of the operation most were repatriated,
some were allowed to enter the
United States.
In September 1994, a USdominated multinational force
arrived in Haiti and the Haitian
military junta finally resigned.
President Aristide returned to
Haiti, followed almost immediately by a majority of the Haitians
in Guantánamo who repatriated
voluntarily. In December, the US
government told the 4,500
Haitians still in Guantánamo that
it was safe to return to Haiti.
Several hundred returned voluntarily, but 4,000 who refused
were returned against their will.
In October 1998, the US Congress
passed the Haitian Refugee
Immigration Fairness Act, which
allowed Haitians, who arrived in
the United States before 31
December 1995 and who had
applied for asylum before then,
to apply for permanent residence.
The policy of interdiction at sea
remains in force, however, preventing the majority of those
leaving Haiti from ever reaching
US shores.
177
The State of the World’s Refugees
Recent developments in US law and practice
At the beginning of the 1990s, the US Immigration and Naturalization Service
established a new system to determine asylum claims. The changes were designed
to address concerns that asylum determinations were often made by immigration
officers un-trained in refugee law and interviewing techniques, who in many cases
relied more heavily on foreign policy-related US State Department recommendations than on the applicant’s own testimony and relevant legal standards. The
reforms included the formation of a specially trained corps of asylum officers, and
the establishment of a documentation centre to provide objective information on
conditions in countries of origin.
The new procedures, as well as changes in the criteria for adjudicating asylum
claims, promised to make the process fairer. For instance, the consistent and credible
testimony of an applicant could be considered sufficient proof of fear of persecution, even without documentary corroboration. However, asylum applicants often
still lacked legal representation or qualified interpreters.28
Also in 1990, the US Congress amended immigration and nationality legislation
to introduce a temporary protected status (TPS). The Attorney General was given the
discretion to provide temporary protection to nationals of countries experiencing
ongoing conflict or natural disasters. TPS differed from temporary protection as
developed in Europe, in that it was not related to situations of mass influx and did
not prevent an individual from pursuing an asylum claim (as was the case in some
European countries). It gave authorization to find employment, and it precluded
deportation.The new status provided at least temporary refuge to people who might
otherwise be returned to danger. Some observers expressed concern, however, that it
might be used to deny full refugee status to nationals of certain countries or that it
would undermine the traditionally permanent nature of US protection. Historically,
virtually all those to whom the United States granted asylum or resettlement became
eligible for permanent residence, and later for citizenship.
In the early 1990s, anti-immigrant sentiment spread in the United States,
driven in part by a weak economy in certain regions and a growing number of
undocumented migrants arriving in search of work. At the same time, as in other
industrialized countries, the number of asylum applications filed in the United
States rose significantly, from 20,000 in 1985 to 148,000 in 1995. These included both valid claims and claims lodged by people looking for alternative
immigration channels. Right-wing politicians opposed to large-scale immigration
fuelled public fears by blaming immigrants and refugees for a host of economic
and social problems.
The anti-immigrant sentiment was reflected in a 1994 debate in California over
a measure called ‘Proposition 187’, which sought to make undocumented migrants
ineligible for most social services and to bar their children from public education.
Although Proposition 187 dealt with undocumented migrants rather than refugees,
it sparked a nationwide debate on immigration in general. The Proposition was
passed, though local courts later declared most of its provisions unconstitutional.
178
Asylum in the industrialized world
Two years later, in 1996, Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA). The Act was primarily aimed at limiting
illegal immigration and abuse of the asylum procedure, but in the process it also
fundamentally changed the way in which the US government responded to asylum
seekers and what rights they were accorded.29 It authorized ‘expedited removals’,
whereby immigration officers can order that an alien arriving without proper
documents be removed from the United States ‘without further hearing or review’.
An exception is made for people who indicate an intention to apply for asylum. In
such a case, the immigration officer has to refer the case to an asylum officer. If the
asylum officer determines that the person has a ‘credible fear’ of persecution, the
person is then allowed to apply for asylum. Failure to demonstrate such a ‘credible
fear’ before the asylum officer or, upon review, an immigration judge, makes the
person subject to deportation. The 1996 law thus created a new legal standard for
screening asylum seekers arriving at US borders to determine whether they should
be admitted to the asylum procedure.30
The 1996 legislation also barred certain categories of people from the asylum
procedure. Advocacy groups were particularly concerned that it barred people with
convictions for ‘aggravated felonies’ from asylum. Even minor offences, committed
years earlier, such as shoplifting, could bar an individual from access to protection.
UNHCR and other groups urged that the nature of the crime committed and the
danger the individual might pose to the community in the country of asylum
should always be balanced against the severity of the persecution feared in the
country of origin.
The new law also provided that, while asylum seekers were being screened for
admittance to the asylum procedure, they would remain in detention. When
Immigration and Naturalization Service detention facilities were unable to accommodate the significantly increased number of detainees, many were held in prisons
alongside criminal offenders. Finally, the Act amended the definition of a refugee
specifically to include individuals fleeing coercive population control programmes.
There were certain exceptions to some of the Act’s more drastic provisions, but
UNHCR and other organizations warned that the 1996 legislation could result in the
refoulement of refugees, particularly if they had committed crimes. Indeed, asylum
seekers increasingly had to resort to provisions of the 1984 UN Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment which were implemented
in US law from 1998.These forbid the return of anyone to a country where there are
substantial grounds for believing they would be subjected to torture, and contain no
exception for those convicted of crimes. By the end of 1999, Congress was considering legislation to address some of the concerns relating to the 1996 law, particularly with regard to expedited removal and the detention of asylum seekers.
Canadian policies towards refugees
Like the United States, Canada is a country founded on immigration, and the resettlement of refugees is an integral part of Canada’s immigration policy. Although
179
The State of the World’s Refugees
immigration was initially restricted mainly to people of European origin, in 1962 this
policy was revised to include nationals of all states.This provided new opportunities for
the resettlement of refugees in Canada.
Between the end of the Second World War and the early 1970s, Canada took in
significant numbers of refugees, including people resettled from Europe after 1945,
Hungarian refugees in 1956–57, and Czech refugees who fled in 1968. In 1972,
Canada accepted over 6,000 Ugandan Asians expelled by President Idi Amin and,
following the 1973 coup in Chile, Canada resettled a similar number of Chilean
refugees. Other refugees were admitted on an ad hoc, individual basis during this period.
Then, in the two decades after 1975, Canada accepted over 200,000 refugees from
Indochina, this being the second largest number after the United States. Together with
the earlier refugee movements, these new arrivals made it clear that the former, caseby-case approach to refugee admission had to be replaced by a more systematic one.
A new Immigration Act was passed in 1976. It set out a refugee status determination procedure and for the first time a broader framework for Canada’s refugee
policy. Like the United States four years later, the Act incorporated the 1951 UN
Refugee Convention definition of a refugee. It affirmed Canada’s commitment to the
‘displaced and the persecuted’, and identified refugees as a distinct class of people to be
selected and admitted separately from immigrants. The Act provided for new, flexible
arrangements for the private sponsorship of refugees to be resettled in Canada. It also
allowed the government to designate special classes of refugees apart from Convention
refugees, thereby giving Canada the scope to help specific groups on its own terms.
During the 1980s, Canada offered resettlement to an average of 21,000 refugees
each year. This included refugees who were government-sponsored, meaning that the
state assumed responsibility for the costs associated with their resettlement, as well as
people who were sponsored privately by churches and other local organizations. As in
the United States, cooperation between government agencies and non-governmental
groups is a feature of refugee resettlement in Canada. Between 1989 and 1998, resettlement admissions fell from 35,000 to under 9,000. In 1999, however, they rose to
17,000 because of the humanitarian evacuation programme for refugees from Kosovo.
By the late 1980s, the steady arrival of asylum seekers in Canada made it clear that
the in-country refugee status determination process needed to be reformed. It was an
onerous procedure with a serious flaw: at no point during the process was the
individual asylum seeker given a chance to be heard by the decision-makers. A
landmark decision of the Canadian Supreme Court in 1985 ruled that fundamental
justice required that the credibility of asylum seekers be determined on the basis of a
hearing.31 As a result, an Immigration and Refugee Board, including a Convention
refugee determination division to hear asylum seekers’ claims, was established in 1989.
The new structure was set up partly in response to public pressure, which had
mounted in 1986 when 155 Sri Lankan asylum seekers were rescued at sea off the
coast of Newfoundland, and in 1987 when a boatload of Sikhs arrived in Nova Scotia.
The Canadian government did not want normal immigration channels to be circumvented, and feared abuse of the country’s liberal asylum process, particularly as its
neighbour to the south tightened its own system.
180
Asylum in the industrialized world
Since then, the Canadian government has introduced other restrictive measures, but
the country has nevertheless often taken the lead in matters of refugee protection. For
instance, Canada was the first country to introduce a ‘fast track’ in its asylum procedure
for applicants who are clearly in need of protection—a procedure now also adopted
with some variations in Australia. Also, in 1993, Canada’s Immigration and Refugee
Board published ground-breaking guidelines on women refugee claimants fearing
gender-related persecution.
Asylum policies in Australia, New Zealand and Japan
Like the United States and Canada, immigration has been integral to the development of Australia and New Zealand. Both were significant destinations for
refugees after the end of the Second World War, and most came from Europe. In
the 25 years after 1945, over 350,000 refugees resettled in Australia, not counting
thousands of others who arrived under family reunion or other immigration
channels. In addition, some 7,000 resettled in New Zealand.
Australia only ended its ‘White Australia’ immigration policy in 1973. Since
then, political upheavals in the Asia–Pacific region have made countries in this
region the prime source of refugees in both Australia and New Zealand. From 1975,
Australia accepted the largest number of Indochinese refugees for resettlement after
the United States and Canada.This amounted to over 185,000, of whom well over half
Refugees resettled in industrialized states,
1981–99*
Figure 7.12
800
700
600
500
400
300
Thousands
200
100
0
1981–85
1986–90
North America
1991–95
Australia
1996–99
Europe
* For details of countries included, see Annex 10.
Source: Governments.
181
The State of the World’s Refugees
were Vietnamese boat people. New Zealand resettled 13,000 during the same period.
In addition to those who were resettled, some boat people managed to make the long
sea journey between southern Viet Nam and Australia’s northern port of Darwin. The
first small boat landed in 1976, and dozens more followed. The need for a process to
handle asylum applications was evident.
In 1978, for the first time, the Australian government set up a refugee status determination committee to assess applications for refugee status. Throughout the 1980s,
the number of applicants remained low. After the events in Tiananmen Square in
Beijing in 1989, however, numbers started to rise since many Chinese students already
in Australia sought to remain. In 1992, the refugee status determination committee
was replaced by a new system, under which a protection unit within the Department
of Immigration and Multicultural Affairs made a first instance decision on applications
and a refugee review tribunal heard appeals.
Particular controversy has surrounded Australia’s policy of mandatory detention of
all unauthorized arrivals. No exception is made for asylum seekers. Australia has a
universal visa policy, requiring a visa of all foreign travellers other than citizens of New
Zealand. Many are detained in the controversial detention centres at Port Headland,
Curtin and Woomera, in the remote northwest of the country.
In mid-1999, Australia joined other industrialized states in introducing legislation
on temporary protection. New temporary safe haven visas were intended to provide
greater flexibility in dealing with large-scale displacement and were granted to several
thousand Kosovo Albanians and Timorese that year. Beneficiaries of this temporary safe
haven are barred from applying for asylum unless the minister decides otherwise,
leaving the duration and quality of protection to ministerial discretion rather than a
reviewable procedure. During 1999, there was an increasing number of illegal arrivals
by boat in Australia. In response, the government introduced new legislation on the
reception and treatment of asylum seekers who arrive illegally in the country. A
‘regional cooperation agreement’ with Indonesia was also concluded, which provides
for the interception, detention and screening of third country nationals transiting
Indonesia en route to Australia.
New Zealand is one of just a dozen countries world-wide with an established
refugee resettlement programme. Its annual quota of 750 places puts New Zealand’s
intake, on a per capita basis, on a par with Canada’s. Although geography has kept New
Zealand relatively shielded from the spontaneous movements of asylum seekers which
have put other industrialized countries under such pressure, the number rose steadily
throughout the 1990s, reaching nearly 3,000 a year in 1998.
Of the major industrialized countries, Japan, which has been a party to the 1951
UN Refugee Convention since 1981, has received by far the smallest number of asylum
applications.The country’s ethnic and cultural homogeneity has been sustained by strict
controls on population movement and immigration, although over 10,000 Indochinese
refugees have been resettled or allowed to remain in Japan since 1975. In the 10 years
from 1990 to 1999, only 1,100 people applied for asylum in Japan. A strict time limit
for making an application for asylum and an unusually high standard of proof meant
that between 1990 and 1997, fewer than four per cent of these were recognized as
182
Asylum in the industrialized world
refugees under the Convention. In 1998 and 1999, more asylum determinations were
made than in the preceding decade, and the acceptance rate rose to over seven per cent
in 1999, while an increasing number of rejected asylum seekers were allowed to remain
on humanitarian grounds. Outside its borders, the Japanese government’s commitment
to refugees is reflected in its strong support for UNHCR’s programmes.
Preserving the right to seek asylum
The legislative changes to asylum systems in industrialized states in the last two decades
have largely been built around the control of irregular migration. Concerns about mass
outflows of people from war-torn regions and about trafficking and smuggling of
people have also contributed to the introduction of tighter control measures. In most
cases these changes, which have been accompanied by a range of new border control
measures, have failed to recognize adequately that some people have a real need to seek
protection from persecution. Preserving the right to seek asylum in industrialized states
which have sophisticated and costly legal systems and border control mechanisms
remains a major challenge for the 21st century.
Policies of deterrence have also contributed to a blurring of the already problematic
distinction between refugees and economic migrants, and have stigmatized refugees as
people trying to circumvent the law. Once refugees reach safety, they are sometimes
detained for prolonged periods. This is a serious concern in many countries, especially
when separated and unaccompanied children and family groups are held in detention.
Equally, in the area of family reunification, practices in a number of countries have made
it virtually impossible for family members to be reunited.This has had a negative impact
both on their capacity to adjust to their new situations in the short term, and on their
longer-term integration prospects. Apart from preserving the right to seek asylum, the
challenge is therefore also to ensure that states respect basic human rights principles.
Managing mixed flows of refugees and other migrants is a complex problem to
which there are no easy answers. Ultimately, the systems developed by countries in the
industrialized world depend on changes in the dynamics of international migration,
including the numbers of refugees and other migrants seeking to enter these countries,
and the methods used to gain entry. This in turn depends on the measures taken by
governments and international organizations to address the causes of refugee flight and
other migratory flows. If the disparity between the world’s wealthiest and poorest
countries continues to grow, as it has done in the last 50 years, and if countries outside
the industrialized world are not sufficiently encouraged and supported in providing
protection and assistance to refugees in their regions, the numbers of people seeking
new lives in the world’s wealthiest states will remain high. Regional approaches to
migration and asylum, such as those adopted in Europe, have their value, but they may
prove to be counter-productive if they undermine global approaches to these issues.
183
Endnotes
3
4
5
6
7
8
9
10
11
12
13
14
Chapter 7
1 S. Collinson, ‘Globalization and the Dynamics of International Migration: Implications for the Refugee Regime’,
UNHCR Working Paper no. 1, Geneva, May 1999.
2 D. Joly, Haven or Hell? Asylum Policies and Refugees in Europe,
15
16
Macmillan, London, 1996; S. Collinson, Europe and
International Migration, 2nd edn, Pinter and Royal Institute
of International Affairs, London, 1994.
See N. Chandrahasan, ‘A Precarious Refuge: A Study of
the Reception of Tamil Asylum Seekers into Europe,
North America and India’, Harvard Human Rights Yearbook, vol.
2, 1989; US Committee for Refugees, Time for Decision: Sri
Lankan Tamils in the West, Washington DC, 1985.
UNHCR, The State of the World’s Refugees: In Search of Solutions,
Oxford University Press, Oxford, 1995, p. 199.
High Commissioner S. Ogata, statement to international conference on ‘Fortress Europe? Refugees and
Migrants: Their Human Rights and Dignity’, Akademie
Graz, Austria, 23 May 1992.
Editorial, ‘We Want to Wash Dross Down Drain’, Dover
Express, 1 Oct. 1998.
UNHCR, ‘Note submitted by the High Commissioner
for the Consultations with Concerned Governments’,
Geneva, Dec. 1986.
European Council on Refugees and Exiles, Safe Third
Countries: Myths and Realities, ECRE, London, 1996; R.
Byrne and A. Shacknove, ‘The Safe Country Notion in
European Asylum Law’, Harvard Human Rights Law Journal,
vol. 9, spring 1996; Danish Refugee Council, ‘Safe Third
Country’ Policies in European Countries, Copenhagen, 1997.
UNHCR, Note on International Protection, 1999, para. 19.
B.S. Chimni, ‘Globalisation, Humanitarianism and the
Erosion of Refugee Protection’, Working Paper no. 3,
Refugee Studies Centre, Oxford, Feb. 2000, pp. 11–12.
F. Liebaut and J. Hughes (eds), Detention of Asylum Seekers
in Europe:Analysis and Perspectives, Kluwer Law International,
The Hague, 1998; UNHCR Standing Committee of the
Executive Committee, ‘Detention of Asylum-seekers
and Refugees: The Framework, the Problem and
Recommended Practice’, UN Doc. EC/49/SC/CRP.13,
4 June 1999.
E. Guild and J. Niessen, The Developing Immigration and
Asylum Policies of the European Union, Kluwer Law
International, The Hague, 1996; D. Papademetriou,
Coming Together or Pulling Apart? The European Union’s Struggle with
Immigration and Asylum, Carnegie Endowment for
International Peace, Washington DC, 1996; J. van der
Klaauw, ‘Refugee Protection in Western Europe: A
UNHCR perspective’, in J.-Y. Carlier and D. Vanheule
(eds), Europe and Refugees:A Challenge?, Kluwer Law
International, The Hague, 1997; F. Nicholson and P.
Twomey (eds), Refugee Rights and Realities: Evolving
International Concepts and Regimes, Cambridge University
Press, Cambridge 1999, part 4, ‘The European
Regime’.
Official Journal of the European Communities, 1996, L63/2.
S. Peers, ‘“Mind the Gap!”’ Ineffective Member State
Implementation of European Union Asylum Measures’,
Immigration Law Practitioners’ Association/British
Refugee Council, London, May 1998.
Official Journal of the European Communities, 1995, C262.
UNHCR, ‘Report of the United Nations High
Commissioner for Refugees’, GAOR, 48th Session,
Supplement No. 12 (A/48/12), 1994, para. 24;
UNHCR, A Comprehensive Response to the Humanitarian Crisis in
the Former Yugoslavia, Geneva, 24 July 1992; W. Kälin,
Endnotes
17
18
19
20
21
22
23
24
25
26
27
28
29
Towards a Concept of Temporary Protection, unpublished study
commissioned by UNHCR, 1996.
Resolution on certain common guidelines as regards
the admission of particularly vulnerable persons from
the former Yugoslavia, Council of Immigration
Ministers, 1–2 June 1993.
United Nations, ‘The Fall of Srebrenica, Report of the
Secretary-General Pursuant to General Assembly
Resolution 53/55’, UN Doc. A/54/549, 15 Nov. 1999.
IGC (Intergovernmental Consultations) Secretariat,
Report on Temporary Protection in States in Europe, North America and
Australia, Geneva, 1995; UNHCR/Humanitarian Issues
Working Group of the International Conference on
the Former Yugoslavia, Survey on the Implementation of
Temporary Protection, Geneva, March 1995.
J. Harding, The Uninvited: Refugees at the Rich Man’s Gate,
Profile Books, London, 2000; J. Morrison, The Cost of
Survival:The Trafficking of Refugees to the UK, British Refugee
Council, London, 1998.
Conclusions of the Presidency, Tampere European
Council, 15–16 Oct. 1999.
UNHCR, Press Release, 8 Oct. 1999.
Cruz Varas v. Sweden, 20 March 1991, European Court of
Human Rights, Series A, no. 201; Vilvarajah v. United
Kingdom, 30 Oct. 1991, Series A, no. 215; N. Mole,
Problems Raised by Certain Aspects of the Present Situation of Refugees
from the Standpoint of the European Convention on Human Rights,
Human Rights Files no. 9, rev., Council of Europe,
Strasbourg, 1997, update forthcoming 2000; R.
Plender and N. Mole, ‘Beyond the Geneva
Convention: Constructing a de facto Right of Asylum
from International Human Rights Instruments’, in
Nicholson and Twomey, Refugee Rights and Realities, pp.
81–105.
UN Population Division, Department of Economic and
Social Affairs, Replacement Migration: Is it a Solution to Declining
and Aging Populations?, UN Secretariat, New York, March
2000, pp. 85–7. See also, ‘Europe’s Immigrants: A
Continent on the Move’, Economist, 6 May 2000;
Harding, The Uninvited, pp. 90–102.
G. Rystad, ‘Victims of Oppression or Ideological
Weapons? Aspects of US Refugee Policy in the
Postwar Era’, in G. Rystad (ed.), The Uprooted: Forced
Migration as an International Problem in the Post-War Era, Lund
University Press, Lund, 1990, p. 209.
American Baptist Churches v. Thornburgh, 760 F.Supp. 796
(N.D. Cal. 1991). See also US Committee for Refugees,
Refugee Reports, vol. 12, no. 1, 29 Jan. 1991. See also N.
Zucker and N. Flink Zucker, Desperate Crossings: Seeking Refuge
in America, M.E. Sharpe, Inc., New York, 1996.
Commission on Human Rights, ‘Cuba: Report on the
Human Rights Situation’, E/CN.4/1995/52, 11 Jan.
1995, paras 34 and 41.
Lawyers’ Committee for Human Rights, Uncertain Haven:
Refugee Protection on the Fortieth Anniversary of the 1951 United
Nations Refugee Convention, New York, 1991.
US Committee for Refugees, World Refugee Survey 1997,
Washington DC, 1997. See also M.J. McBride, ‘The
Evolution of US Immigration and Refugee Policy:
Public Opinion, Domestic Politics and UNHCR’,
UNHCR Working Paper no. 3, Geneva, May 1999.
30 Lawyers’ Committee for Human Rights, Slamming the
‘Golden Door’:A Year of Expedited Removal, LCHR, New York,
April 1998.
31 Singh et al v. Canada (Minister of Employment and Immigration),
[1985] 1 Supreme Court Reports 1997.
Chapter 7 boxes
i Tampere European Council, ‘Presidency Conclusions’,
15–16 Oct. 1999.
ii Islam v. Secretary of State for the Home Department and Regina v.
Immigration Appeal Tribunal and Another Ex Parte Shah, House of
Lords judgement, 25 March 1999, [1999] 2 WLR 1015,
[1999] Imm AR 283.
iii Inter-Agency Sanding Committee, ‘Global Humanitarian
Assistance 2000’, 23rd meeting, draft final report, March
2000.
iv Development Assistance Committee, 1999 Development
Cooperation Report, Organization for Economic Cooperation
and Development, Paris, 2000, Table 19; Earthscan, The
Reality of Aid, annual publication, London.
v Sale v.Haitian Centers Council,Inc.,et al., 113 S. Ct. 2549 (1993);
See also ‘Cases and Comment’, International Journal of Refugee
Law, vol. 6, no. 1, 1994, pp. 69–84.
vi Brief of the Office of the United Nations High
Commissioner for Refugees as amicus curiae in Haitian interdiction case, 1993, see International Journal of Refugee Law, vol. 6,
no. 1, 1994, pp. 85–102 at p. 97.
vii Haitian Refugee Cases, Case no. 10.675, Inter-American
Commission on Human Rights, OEA/Ser/L/V/II.93, Doc.
36,17 Oct.1996;International Human Rights Reports,vol.5,1998,
pp. 120–65.
viii Haitian Centers Council, Inc. v. Sale, 8 June 1993, 823 F. Supp.
1028, 1042.
Chapter 8
1 UNHCR, Public Information Section, ‘CIS Conference on
Refugees and Migrants’, 30–31 May 1996, Geneva, p. 3.
2 See R. Conquest, The Nation Killers:The Soviet Deportation of
Nations, Macmillan, London, 1970; A.M. Nekrich, The
Punished Peoples:The Deportation and Fate of Soviet Minorities at the
End of the Second World War, W.W. Norton and Co., New
York, 1978; J.-J. Marie, Les peuples déportés d’Union Soviétique,
Editions Complexe, Brussels, 1995.
3 R. Brubaker, ‘Aftermaths of Empire and the Unmixing
of Peoples: Historical and Comparative Perspectives’,
Ethnic and Racial Studies, vol. 18, no. 2, April 1995, pp.
189–218; B. Nahaylo and V. Swoboda, Soviet Disunion:A
History of the Nationalities Problem in the USSR, Hamish
Hamilton, London, 1990.
4 Human Rights Watch/Helsinki, Bloodshed in the Caucasus:
Escalation of the Armed Conflict in Nagorno-Karabakh, Human
Rights Watch, New York, 1992.
5 See N. F. Bugai, Turki iz Meskhetii: dolgii put k reabilitatsii
[Turks from Meskhetia: the Long Road to Rehabilitation], Ross,
Moscow, 1994, pp. 131–5; H. Carrrere d’Encausse,The
End of the Soviet Empire:The Triumph of the Nations, Basic Books,
New York, 1992, pp. 98–9, 103–4.
6 Gosudarstvennyi komitet SSSR po statistike [USSR State
Committee for Statistics], Natsionalnyi sostav naseleniia: Chast
II [The National Composition of the Population: Part II], Moscow,